Commonwealth v. Mendoza

287 A.3d 457

COMMONWEALTH of Pennsylvania, Appellant

v.Angel Martin MENDOZA

No. 260 MDA 2022

Superior Court of Pennsylvania.

Submitted October 3, 2022

Filed: December 16, 2022

Kelby S. Carlson, Assistant District Attorney, York, for Commonwealth, appellant.

James E. Zamkotowicz, Assistant District Attorney, York, for Commonwealth, appellant.

Richard W. Fisher III, York, for appellee.

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

The Commonwealth appeals from the January 10, 2022, order entered in the Court of Common Pleas of York County, which granted the omnibus pre-trial nunc pro tunc suppression motion filed by Appellee Angel Martin Mendoza ("Mendoza").¹ After a careful review, we reverse the order granting the suppression motion, and we remand for further proceedings consistent with this decision.

The relevant facts and procedural history are as follows: The Commonwealth filed an Information against Mendoza charging him with possession of firearm prohibited, person not to possess/use firearms-delinquent, possession with the intent to manufacture or deliver a controlled substance, and possession of drug paraphernalia² following a search of Mendoza's residence on August 24, 2020.

On November 30, 2021, Mendoza filed a counseled omnibus pre-trial nunc pro tunc suppression motion³ wherein he averred he was entitled to suppression of the evidence seized from his residence pursuant to this Court's opinion in Commonwealth v. Nicholson , 262 A.3d 1276 (Pa.Super. 2021). Specifically, Mendoza noted that, on August 24, 2020, Detective Cody Myers of the York County Detective Bureau applied for and was granted a search warrant for the property located at --0 W. Market Street, 2^nd floor, York, PA. However, Mendoza averred "the search warranted lacked the requisite probable cause necessary for the Magisterial District [Justice] to issue said search warrant." Mendoza's Nunc Pro Tunc Suppression Motion, filed 11/30/21, at 2. In this vein, he alleged "the Commonwealth is incapable of establishing a substantial nexus between [Mendoza's] home and criminal activity or contraband sought to permit the search [of] his residence as required by [ Nicholson , supra ]." Id. at 3.

On December 20, 2021, the suppression court granted Mendoza permission to file the suppression motion nunc pro tunc and scheduled a suppression hearing for January 10, 2022. At the hearing, the parties agreed the suppression issue should be examined within the four-corners of the search warrant and supporting affidavit of probable cause. The Commonwealth offered into evidence Detective Myers’ application for the search warrant in which he identified the premises to be searched as --0 W. Market Street, 2^nd floor, York City, PA, and the following items to be seized:

Marijuana, Schedule 1 controlled substance, along with any other drugs or drug paraphernalia, packaging, materials, scales, business records, official funds, firearms, identification and other documentary and physical items relating to the possession, distribution[.]

Application for Search Warrant, dated 8/24/20.

In the supporting affidavit of probable cause, Detective Myers indicated the following (verbatim):

The affiant, Detective Cody Myers, has been a member of the York County District Attorney's Office since July of 2019 and is currently assigned to the York County Drug Task Force. Prior to my employment with the York County District Attorney's Office, I was a member of the York County Sheriff's Office assigned to the Criminal Response Unit for 8 years. I was assigned to the York County Drug Task Force from 2016 until beginning employment with the District Attorney's Office. During that time, I have conducted and assisted with a variety of drug investigations which have led to the arrests and numerous convictions for violations of the Controlled Substance, Drug Device, and Cosmetic Act of 1972, as well as U.S. currency seizures involving the proceeds of drug vending operations and criminal activity. I have acted as the affiant of and been present for the service of numerous search warrants resulting in the seizure of controlled substances, related drug paraphernalia, firearms, U.S. currency, stolen property, and documentation referencing the sale of illicit narcotics. I have been involved in numerous arrests of individuals for narcotic offenses to include: marijuana, synthetic marijuana, cocaine, heroin, fentanyl, methamphetamine, MDMA/Ecstasy, and several other substances listed in the Controlled Substance, Drug Device, and Cosmetic Act of 1972.

Additionally, while working drug investigations in central Pennsylvania, I have had the opportunity to interview dozens of informants and sources of information. These interviews concerned the value of controlled substances, the appearance of controlled substances, methods of sale, methods of packaging, methods of hiding, secreting, and transporting controlled substances as well as identifying persons involved in controlled substance distribution.

Within the last three weeks, I met with a reliable confidential informant who stated they can purchase marijuana from Angel Martin Mendoza[.] The CI was able to identify Mendoza's residence as --0 W. Market Street, York City, York County, Pennsylvania. The CI stated you have to enter Mendoza's apartment from a staircase to the rear of --0 W. Market Street which leads to a second-floor door. The CI knows this to be Mendoza's residence from previously being inside with Mendoza. The CI stated they know Mendoza is carrying a handgun. The CI stated Mendoza has showed them his handgun on several occasions.

Mendoza lists his current address with PennDot as --0 W. Market Street, 2^nd floor, York, PA[.] The York City Police have responded to emergency calls for Mendoza at this address as recent as April of 2020. In 2017, Mendoza was arrested at --0 W. Market Street, 2^nd floor, for an outstanding warrant.

Within the past two weeks, a reliable confidential informant at my direction made arrangements with Mendoza for the purpose of purchasing a quantity of marijuana. Police officers observed Mendoza leave the area of the rear staircase to --0 W. Market Street and enter a vehicle. This staircase leads to the second-floor apartment. Mendoza was surveilled from --0 W. Market Street to a predetermined location within York County to deliver a quantity of marijuana, in exchange for previously recorded official funds. This marijuana was subsequently seized by police.

Within the last week I conducted physical surveillance where I viewed Mendoza and the vehicle used in the aforementioned delivery of marijuana to the rear of --0 W. Market Street, York City, York County.

On 8/24/2020, a reliable confidential informant had prior arrangements with Mendoza for the purpose of purchasing a quantity of marijuana. At the time of the scheduled purchase, Police Officers observed Mendoza exit the staircase to the rear of –-0 W. Market Street and enter a vehicle. This staircase only goes to one door on the second floor of the residence. The York City Police subsequently stopped Mendoza for a vehicle code violation. They developed probable cause to search the vehicle. A quantity of marijuana and a handgun were located inside the vehicle. Mendoza was taken into custody for the marijuana and handgun.

While interviewing Mendoza, he stated he currently resides at --2 W. Market Street, 1^st floor, York City, York County. I believe this to be false information that Mendoza provided in an attempt to lead officers away from his correct address.

The CI should be considered past proven reliable because the information they have provided led to the arrests of three people for felony drug crimes. The outcome of these cases is still pending. The CI's information has led to the seizure of marijuana, cocaine, and quantities of U.S. currency. The information the CI is providing continues to be accurate.

Based on this information, I believe that a marijuana vending operation is being conducted by Angel Mendoza at –-0 W. Market Street, 2^nd floor, York City, York County. I respectfully request a search warrant be issued to search [this address], as well as any curtilage associated with the property for additional evidence, including additional amounts of marijuana; cash previously used to purchase marijuana (official funds); materials and items used to package narcotics, such as plastic bags and scales; [and] records or other documentation of past narcotics transactions. I am also requesting to search all persons during the service of the search warrant[.] I am requesting all persons be searched based on this Detectives [sic ] 9 years of experience that narcotics can be easily concealed on a person and later destroyed.

Affidavit of Probable Cause, dated 8/24/20, at 1-4.⁴

Following the hearing, by order entered on January 10, 2022, the suppression court granted Mendoza's omnibus pre-trial nunc pro tunc suppression motion. Specifically, the suppression court indicated the following:

The best cite we have is [ Nicholson , supra ,] published on September 27, 2021.

Nicholson seems to stand for the proposition that there must be a substantial nexus between the suspect's home and the criminal activity or contraband sought to be the subject of the search warrant.

In the case presently, the only distinguishing factor that we've been able to ascertain between the two cases is that the Defendant and Mr. Mendoza did not make any stops between his residence and the first controlled buy or before being stopped by the police on his way to the second controlled buy.

However, we are not satisfied that is enough of a distinction to overrule the holding of Nicholson . While we think that this holding has a very chilling effect on prosecution of drug offenses, it is currently the law in Pennsylvania, and therefore, we will grant the motion to suppress.

Suppression Court Order, filed 1/10/22.

On February 8, 2022, the Commonwealth filed the instant appeal, and all...